SJC puts limits on affordable housing law
Rules against state board in Groton case
In a ruling limiting the power of a controversial housing law, the state's highest court said yesterday that a state board could not order a town to grant an easement to a developer proposing an affordable condominium project.
In a five-page decision written by Justice John M. Greaney, the Supreme Judicial Court said the state Housing Appeals Committee was wrong in its 2005 decision in favor of the developer, Washington Green LLC.
The developer's lawyer did not return a telephone call seeking comment.
The state board, citing the Chapter 40B affordable housing law, had ordered the town of Groton to provide easements on town-owned land without first getting the approval of residents at Town Meeting. The law "confers no authority on the committee to order a municipality to convey an easement, and, in so doing, the committee contravened state law," Greaney wrote. "The committee exceeded its authority."
George "Fran" Dillon, chairman of the Groton Board of Selectmen, welcomed the court's ruling, saying the state board would have bypassed Town Meeting and unilaterally forced the town to hand over its property rights.
"We're obviously quite happy with the decision," said Dillon. "It affects not just us, but it could affect many other communities that find themselves in the same situation."
At issue was a 13-acre parcel off Route 40 in Groton where the developer planned to build a 44-unit condo complex with 11 units deemed affordable under Chapter 40B.
To further the goal of increasing development of affordable housing statewide, the 40B law allows developers who set aside a portion of their projects for affordable housing to bypass most town zoning restrictions.
Groton town boards shot down the plan, however, saying its location did not provide safe highway access to Route 40. The developer appealed to the state board. The board ruled that the town could fix the safety problem by clearing and regrading a patch of town-owned land surrounding an electrical substation.
The state board insisted that the town grant an easement to the developer so the affordable housing project could proceed, according to the SJC. But the town insisted that such a grant must be approved by residents at Town Meeting.
The Housing Appeals Committee is part of the regulatory framework of Chapter 40B. The state board tackles disputed projects and can, as it tried to do in Groton, order municipal governments to take actions they had previously refused to take.
The SJC said that the use of "town meeting for the conveyance [of land] is a directive imposed by the Legislature." The court added that locally imposed barriers may need to yield to the regional need for affordable housing, but this legislative judgment cannot be stretched" to include bypassing Town Meeting.
Werner Lohe, chairman of the state board, said in an e-mail to the Globe that the panel as "a quasi-adjudicatory body, only expresses itself in its formal decisions. We will not have any comment on the recent SJC decision."
Phil Hailer - spokesman for the state Department of Housing and Community Development, which oversees the board and enforcement of Chapter 40B - said the ruling was narrowly drawn.
He said the court clarified a legal ambiguity, but said it will not slow down expansion of the number of affordable housing units in the state.
Thomas J. Urbelis - the lawyer for the City Solicitors and Town Counsel Association, which had asked the court to protect Groton - said the ruling properly restores authority to town meeting.
"The decision upheld the independence and authority of town meeting on matters which are within the jurisdiction of town meeting," he said.
